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Wednesday, February 26, 2014

Multiculturalism’s Child Brides

Recent reports of under-age marriages in Australia are
evidence that the authorities need to do more to enforce marriage laws
in Western nations, and to restrict the practice of
unregistered ‘clandestine’ religious marriages, particularly Islamic
marriages.

Two cases recently came to public attention
of NSW girls being married to older men in unregistered religious
ceremonies, allegedly with the approval of their guardians. The first
case was of a 14-year-old girl who reported she was deceived into
marrying a 21-year-old. After being subjected to years of sexual and
physical abuse she fled the relationship. Her case came to light in
October, 2013, when she needed to pursue custody of her daughter through
the courts.

The second case was of a 12-year-old married to a
26-year-old overseas student by her father, an Australian-born convert
to Islam. Imam Riaz Tasawar, who allegedly conducted the ceremony, has
been charged by the police, which is remarkably the first prosecution
in NSW for at least 20 years of someone for solemnizing a marriage
without being an authorized marriage celebrant. The father has also
been charged with procuring his daughter for sexual intercourse and
being an accessory to a sexual offence against a child.

The Daily Telegraph has reported an ‘epidemic‘
of young girls becoming ‘child brides’ or being in de facto
relationships in NSW. The state Community Services Minister, Pru
Goward, commented
“I understand there are actually a significant number of unlawful,
unregistered marriages to under-aged girls in NSW, particularly in
western Sydney, southwest Sydney and the Blue Mountains.”

The Australian Marriage Act 1961 (paragraph 101)
makes it a crime for anyone to conduct a marriage without being
authorized by the state. It is also an offense for an authorized
celebrant to conduct a marriage without receiving proper notice of
intention, ensuring on the basis of the information provided that the
parties are eligible to be married, and registering the marriage with
the state.

It is crystal clear from the legal history of marriage’s evolution in
the West that the reason for public registration of marriages was to
protect vulnerable women — and their children — from predatory and
dishonest men. As Sir Roger Ormrod stated
in Collett vs. Collett [1968], “The control of the formation of
marriage in this country [i.e. in England] has a long statutory history, much of it
intended to prevent clandestine marriages:” marriage laws were designed
to to guarantee that marriages, through public registration, met minimum
legal requirements in order to prevent abuses against women.

The public registration of marriages was first introduced in Western
jurisdictions through canon (i.e. church) law: the Council of Trent
ruled in the 16th century that a wedding must be preceded by public
notices read out in church services; there had to be at least two
witnesses; and an official wedding register had to be maintained. These
provisions were justified on the grounds that ’clandestine’
(unregistered) marriages put women at risk of exploitation.

In England registration of marriages was enforced by the state in
the Marriage Act of 1753, which was formally titled “An Act for the
better preventing of clandestine Marriages”. The whole focus on this
law was the prevention of private marriages – which had become a scandal
in England – and again the reason given was the protection of women.
Severe penalties were provided for clergy who solemnized illegal
marriages or tampered with marriage registers.

In the light of the history of marriage laws, it is hardly surprising
that one result of neglect in enforcing them would be a rise in
exploitative, abusive relationships which disadvantage women, including
forced and underage marriages. The Australian Islamic underage marriages
which have attracted so much recent attention are but the tip of the
iceberg of unregistered religious marriages across Western
jurisdictions.

The practice of conducting unregistered religious ceremonies has
become so widespread that in some cases those who solemnize or are a
party to illegal religious marriages may not even be aware that they are
committing an offence. When a former Muslim told me recently about his
unregistered marriage in Australia, entered in to while he was still
following Islam, he was shocked to learn that the marriage had most
likely been illegal.

The proliferation of unregistered religious marriages in recent years
is a sign that the Australian authorities need to do much more to
enforce the provisions of the Australian Marriage Act.

In the wake of the recent cases, it was to the credit of the Australian National Imams Council that it was outspoken
in rejecting underage marriages. However the Imams should also have
spoken out against unregistered marriages, because it is a culture of
unregistered unions which is placing Australian women and girls at risk
of exploitation through forced and underage marriages. The whole point
of registration has always been to help prevent such abuses.

A longer article by Mark Durie on religious marriage and marriage as sex-trafficking will appear in the March edition of Quadrant

The Imams Council also stated that ‘any religion … should not be held
accountable for violations by its followers.’ It could be objected that
many Islamic authorities have argued that the marriage of young girls
is permissible in Islam. However this is beside the point: for the
authorities it ought to be irrelevant whether a particular religion’s
teachings condones the marriage of young girls or forced marriages: the
point is that these practices should not be tolerated in Australia,
irrespective of what particular religions may or may not teach.

It is not just Muslims who are engaging in unregistered marriages in
Western jurisdictions. The unregistered polygamous marriages of some
Mormon sects present serious challenges for the authorities in the
United States; Melbourne academic Sheila Jeffries in Man’s Dominion
has criticized a growing polygamous trend on the fringes of American
protestant Christianity; and UK courts have also had to deal with the
issue of unregistered Hindu marriages.

In the UK Muslim leaders have become concerned about the trend for
Islamic unions not to be registered, because of the impact this has
upon women. According to muslimmarriagecontract.org,
a project of the Muslim Parliament of Great Britain, “it is clear that
many thousands of [Muslim] couples, for one reason or another … are only
in what is locally known as a nikah – a marriage that is not
accompanied by a civil marriage and is therefore not recognized by the
law in Britain. It is equally clear that this lack of proper legal
status often results in problems for the couple and suffering,
especially for the woman…” The site contrasts the situation in the UK
with Canada, where Muslims ‘almost always’ register their marriages with
the state.

The UK has badly mismanaged the issue of non-Christian religious
marriages for decades. Although it is a felony in England to solemnize a
marriage without meeting the requirements of the Marriage Act of 1949, Islamic marriages have proved to be beyond the reach of the law. In a key legal decision from the 1960’s (R v Bham),
a court of appeal ruled that a Mr Bham, who solemnized an unregistered
Islamic marriage with a Christian woman, was not in violation of the
English Marriage Act because the ceremony was not “a marriage of the
kind allowed by English law” (see here):
in effect the court found that because the union was not a Christian
one, or purporting to be like a Christian marriage, it was not actually a
‘marriage’ at all, which had the effect that its solemnization was not
regulated by the state.

A series of English rulings have reinforced this approach (see the review here). For example in Gandhi vs Patel [2002] Judge Park decided that a

“Hindu ceremony did not give rise to a
‘void marriage’. Rather it created something which was not a marriage
of any kind at all, not even a marriage which was void. It might be
described as a ‘non-marriage’ rather than a void marriage. … In the
present case the Hindu ceremony … purported to be a marriage according
to a foreign religion, and it made no attempt to be an English marriage
within the Marriage Acts.”

In a similar vein, in AAA v Ash [2010] it was accepted by the court
that an Islamic marriage held in a mosque was a non-marriage in English
law: English law distinguishes between a valid marriage and a ‘void’
marriage – both of which are regulated by the marriage laws – and
‘non-marriages’ which fall outside the scope of the law.

Such legal decisions were only possible because English marriage laws
are constructed around the marriage ceremonial of the Church of England
and its Christian understanding of marriage. The outcome is that in the
UK today Christian marriages are far more rigorously controlled by the
state than Islamic marriages.

In A-M vs A-M [2001] Judge Hughes commented that if the
parties to a religious marriage were all fully aware that it was
polygamous, then this could mean that “it in no sense purported to be
effected according to the Marriage Acts, which provide for the only way
of marrying in England.” In other words, solemnizing a religious
polygamous union in the UK would not be in breach of the marriage laws
if the parties all understood that the union was not a legal marriage as
defined by English law! This strays a long way indeed from the intended
purpose of the marriage laws.

To treat Christian and non-Christian marriages differently
disrespects non-Christian religions because their unions are considered
‘non-marriages,’ and not even ‘void’ marriages. More importantly, it
puts the women who enter such unions at risk because the failure of the
state to regulate their marriages makes them vulnerable to the very
abuses which the centuries-old marriage laws were meant to to prevent.

It was the Islamic character of the ceremony which proved critical in the appeal court’s decision in R v Bham
that no ‘marriage’ had taken place, and thus there had been no felony
of conducting an unauthorized solemnization of a marriage. Such legal
decisions have been detrimental to the state of marriage in England. By
declaring certain religious marriages to be beyond the regulatory power
of the marriage laws, they have validated the proliferation of
unregistered religious ceremonies. This has helped foster a culture of
non-registration of (non-Christian) religious marriages which, through
the privacy of such unions, can serve to conceal and validate abuses
such as underage marriages and polygamous unions.

It remains to be seen what the outcome will be in the prosecution of
Imam Riaz Tasawar in New South Wales. Will the union in question prove
to be a ‘void’ marriage and thus against the law, or a ‘non-marriage’
and thus outside the scope of the law? A crucial difference is that, in
contrast to the English situation, Australian marriage laws are not
tied to the concept of a state church or any particular religion, so
there is a much sounder basis for prosecution than there would be in the
UK. In any case the prosecution of Imam Riaz Tasawar will be an important test of
Australia’s apparently neglected marriage laws.

The central place of the established Church of England in the English Marriage Act
of 1949 has attracted a good deal of recent attention in the
deliberations of the English Parliament over revising marriage laws to
allow same-sex unions. The debate has focussed on the tension between
parliament’s intention to change the marriage laws on the one hand, and
the Church’s rejection of same-sex unions on the other. A pressing
question for the UK is whether the interests of vulnerable women and
children would be better served by decoupling English marriage laws from
a particular religion altogether, so that all religious marriage
ceremonies can be placed on an equal footing under the one law, and
Islamic marriages in particular can be regulated to the same extent as
Christian or secular marriages.

If this were to happen, a key issue would be what constitutes a
marriage. The comment of a 1973 Law Commission report on marriage laws
in England and Wales is no less relevant today: “Unfortunately, the Act
gives little indication of what are the minimum requirements of a form
known to and recognised by our law … as capable of producing … a valid
marriage.”

Since the ceremonies of the Church of England can no longer be taken
to be the yardstick by which a ‘valid marriage’ is defined – a situation
which has become even clearer with the extension of marriage in England
and Wales to same-sex couples – it should become a matter of some
urgency for UK legislators to construct an agreed definition of marriage
which will encompass non-Christian religious unions, so as to ensure
there is equal protection afforded by the marriage laws to women in
non-Christian marriages, and to allow the prosecution of those who
conduct unregistered religious ceremonies.

There has been a great deal of debate in Western states about the
function and purpose of marriage in recent years, much of it around
same-sex unions. What is often forgotten is that the public
registration of marriages, developed over centuries, was always intended
as a device to prevent men from abusing women – and their dependent
children – through poorly documented relationships. The recent rise in
forced and underage religious marriages in Australia, and in other
Western jurisdictions, underscores the need for greater vigilance on the
part of the authorities to uphold and strengthen marriage laws. We can
all learn a lesson from the shambolic failure of UK marriage laws to
provide reasonable protection for women in non-Christian religious
marriages.

It is concerning that in NSW no-one has been prosecuted for
conducting an unregistered marriage in at least 20 years. It is equally
troubling that despite the intense efforts devoted to extending
marriage to same-sex couples in the UK, so little has apparently been done to bring
non-Christian religious marriages under the scope of the marriage laws.
This is despite the fact that the reasons for the state to enforce
marriage laws through a transparent system of public registration by
properly authorized celebrants are no less valid today than they were in
centuries past. Not to do so is a failure of compassion.

Why should
women in Islamic marriages be treated as second class citizens, with
fewer rights before the law than women in Christian or secular
non-religious marriages?

Mark Durie is a theologian, human rights activist,
Anglican pastor, a Shillman-Ginsburg Writing Fellow at the Middle East
Forum, and Adjunct Research Fellow of the Centre for the Study of Islam
and Other Faiths at Melbourne School of Theology.

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About Me

Dr Mark Durie is an academic, human rights activist, pastor, Shillman-Ginsburg Fellow at the Middle East Forum, and Adjunct Research Fellow of the Arthur Jeffery Centre of the Melbourne School of Theology. He has published many articles and books on the language and culture of the Acehnese, Christian-Muslim relations and religious freedom. Holding a PhD in Linguistics from Australian National University and a ThD in Quranic Theology from the Australian College of Theology, he has held visiting appointments at the University of Leiden, MIT, UCLA and Stanford, and was elected a Fellow of the Australian Academy of the Humanities in 1992.